Madras High Court
Kalirajan @ Rajan Demathew vs K.Mary Fora on 21 March, 2025
Author: G.Jayachandran
Bench: G. Jayachandran
CMA(MD) NOs. 1087 and 1123 of 2022
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 21-03-2025
CORAM
THE HONOURABLE DR JUSTICE G. JAYACHANDRAN
AND
THE HONOURABLE MS.JUSTICE R. POORNIMA
CMA(MD) NOs. 1087 and 1123 of 2022
and
CMP(MD)NO.11463 of 2022
Kalirajan @ Rajan Demathew ... Appellant
in both C.M.A.(MD)
Vs
K.Mary Fora ... Respondent
in both C.M.A.(MD)
Prayer in C.M.A(MD).No.1087 of 2022: This Civil Miscellaneous Appeal has been filed
under Section 19 of Family Court Act r/w Section 55 of IDOP Act to set aside the order
passed in I.D.O.P.No.3 of 2019 on the file of Family Court, Thanjavur dated 24.08.2022
and grant an order of decree under Section 10(1)(x) of Divorce Act, 1869.
Prayer in C.M.A(MD).No.1123 of 2022: This Civil Miscellaneous Appeal has been filed
under Section 19 of Family Court Act r/w Section 55 of IDOP Act to set aside the order
passed in I.D.O.P.No.16 of 2019 on the file of Family Court, Thanjavur dated 24.08.2022
and grant an order of decree under Section 32 of Divorce Act, 1869.
For Appellant : Mr.T.S.Mohamed Mohideen
(in both C.M.A.(MD)
For Respondent : M/s.U.Nirmalarani
(in both C.M.A.(MD)
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ORDER
(Order of the Court was made by the Hon'ble G.Jayachandran J.)
By this common order both the civil miscellaneous appeals are being disposed of.
2. I.D.O.P.No.3 of 2019 was filed by the petitioner/husband under Section 10(1)(x) of the
Indian Divorce Act, 1869 and I.D.O.P.No.16 of 2019 filed by the wife/respondent under
Section 32 of the Indian Divorce Act, 1869 for the restitution of conjugal rights .
3. The facts of the case is that on 02.09.2013, the marriage between the petitioner and the
respondent got solemnized as per Christian rites. According to the petitioner/husband,
marriage was not consummated due to non-cooperation of the respondent/wife. The
respondent/wife left the matrimonial home and stayed with her parents for a while.
Thereafter, she returned to her matrimonial home on 04.06.20214 but was behaving
erratically and causing mental cruelty. When the petitioner/husband enquired about the
same, he found that the respondent/wife had already married another person and got
divorced. By suppressing all these facts, the respondent/wfie had married the
petitioner/husband but refused to cohabit with him.
4. In the I.D.O.P.No.16 of 2019 filed by the respondent/wife for restitution of conjugal
rights, she has contended that after solemnization of marriage, the matrimonial home was
set up in a portion of the small house, wherein the parents were also residing and the
reason for non-consummation of marriage was for want of privacy. Thereafter, five
kilometres away from her native, separate home was set out in a rented house and they
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were living happily. However, due to the ill advice of her mother-in-law, the
petitioner/husband started treating her indifferently and even after she got conceived, she
was not provided with enough care. The fetus was aborted due to the ill treatment.
Thereafter, when she along with her parents went back to the matrimonial home, she was
not received by the petitioner/husband due to ill advice of the in-laws. The efforts taken by
the elders in the Church did not yield any result. Since the petitioner/husband has willfully
withdrawn from the matrimonial company, an order of restitution of conjugal rights
sought. The Trial Court on petition took up both the cases together and conducted
common trial. On considering the evidence, the Trial Court allowed the petition filed by
the respondent/wife for restitution of conjugal rights and dismissed the petition filed by the
petitioner/husband for divorce.
5. The contention of the petitioner/husband that the earlier marriage of the respondent/wife
with one Jones @ Ponniah was suppressed and his marriage was solemnized when the
earlier marriage was in subsistence was rejected by the Trial Court stating that the
petitioner/husband has married the respondent/wife only after knowing the resolution of
the earlier marriage.
6. The learned counsel appearing for the appellant would submit that the findings of the
Trial Court are factually wrong. On the date of solemnizing the marriage, the marriage
between Jones @ Ponniah and K.Mary Flora/respondent/wife was in subsistence. That fact
was not only suppressed when the earlier marriage is in subsistence, the subsequent
marriage on the phase is illegal and void.
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7. He further referred to Section 19(4) of the Indian Divorce Act, 1869 and submits that
the marriage between Jones @ Ponniah and K.Mary Flora/respondent/wife was in force as
on 02.09.2013. However, the Trial Court had erroneously believed the evidence of K.Mary
Flora/respondent/wife that her earlier marriage got dissolved in the month of February
2013 itself. To substantiate his submission, the learned counsel for the appellant furnished
copy of the divorce decree passed in IDOP No.46 of 2013 dated 20.12.2013 filed by
K.Mary Flora/respondent/wife against Jones @ Ponniah before Principal District Court,
Thanjavur.
8. To refute the above contention, the learned counsel for the respondent though entered
appearance by name U.Nirmala Rani, but not able to furnish any contra documents. It is
also now stated by the counsel appearing for the appellant that the respondent/wife herself
has initiated divorce proceedings before Principal District Court, Thanjavur in IDOP No.
17 of 2025. He would further submits that the petition for restitution of conjugal rights
filed by the respondent/wife in IDOP No.16 of 2019 was allowed on 24.08.2022 vide
common order. Even after lapse of three years, she has not taken any steps for enforcing
the decree of restitution of conjugal rights. On the cumulative assessment of the facts, we
find that there is a gross suppression of facts regarding the subsistence of the earlier
marriage. On misrepresentation to the Court, the respondent/wife had succeeded in getting
the divorce petition dismissed. On the date of the marriage between the appellant/husband
and the respondent/wife that is on 02.09.2013, the respondent/wife marriage with Jones @
Ponniah was in force. While so, the marriage between the appellant/husband and the
respondent/wife on 02.09.2013 is null and void is liable to be dissolved in the light of
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Section Section 19(4) of the Indian Divorce Act, 1869.
9. With these observations, both the Civil Miscellaneous Appeals stands allowed. No
costs. Consequently, connected miscellaneous petition is closed.
[G.J.J.,] [R.P.J.,]
21.03.2025
NCC :yes/No
Index :yes/No
Internet:yes/No
rgm
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DR.G.JAYACHANDRAN, J.
and R.POORNIMA, J.
rgm To The Family Court, Thanjavur CMA(MD) NOs. 1087 and 1123 of 2022 and CMP(MD)NO.11463 of 2022 21.03.2025 https://www.mhc.tn.gov.in/judis ( Uploaded on: 17/04/2025 03:42:11 pm )